Fox v McDonald

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 20 June 2017
• Neutral Citation: [2017] IECA 189
• Date: 20 June 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2016/480

BETWEEN/

FINTAN FOX

PLAINTIFF / APPELLANT

- AND -

DECLAN MCDONALD

AND

DANKSE BANK TRADING AS DANKSE BANK

AND

SHERRY FITZGERALD AUCTIONEERS

AND

SHERRY FITZGERALD LANNON AUCTIONEERS

AND

SHERRY O'REILLY AUCTIONEERS

DEFENDANTS / RESPONDENTS

[2017] IECA 189

Irvine J.

Peart P.

Irvine J.

Hogan J.

Record No. 2016/480

High Court Record No. 2016/6259P

THE COURT OF APPEAL

Abuse of process – Vexatious proceedings – Bound to fail – Appellant seeking damages for breach of contract, negligence, breach of duty and breach of statutory duty – Whether proceedings were bound to fail

Facts: The second respondent, Danske Bank, in summary summons proceedings, sought the recovery of approximately €1.52m from the appellant, Mr Fox, on foot of various loan facilities. In April 2016 the High Court (Noonan J) granted judgment in favour of Danske against Mr Fox for €1,472,996.95 together with costs. Mr Fox's liabilities to Danske were secured by two mortgages dated the 8th May 2007 and the 6th March 2012. These entitled Danske to appoint a receiver over the various properties to which the same related. Danske appointed a receiver, the first respondent, Mr McDonald, by two deeds of appointment each dated the 27th May 2014. Mr Fox commenced an action for damages for breach of contract, negligence, breach of duty and breach of statutory duty against Danske and the receiver (High Court Record No. 2014/7584) (the 2014 proceedings). Mr Fox alleged that Danske had mismanaged and misapplied his monies. He challenged Danske's right to appoint a receiver and maintained that the latter appointment was unlawful with the result that the receiver did not have the power to seek to sell his properties or to appoint estate agents to that end. By order of the High Court (O'Regan J) dated the 15th July 2016, Mr Fox's claim against the receiver and Danske was dismissed. Mr Fox appealed to the Court of Appeal against the order for summary judgment granted by Noonan J as he did the judgment and order of O'Regan J dismissing the 2014 proceedings against the receiver and Danske. On the 26th May 2017, Irvine J upheld first the order for summary judgment and second the order of the High Court dismissing Mr Fox's claim against the receiver and Danske. She was satisfied that Mr Fox had not demonstrated any bona fide ground of appeal in respect of Danske's claim for summary judgment in the sense of demonstrating any bona fide arguable ground of defence to those proceedings. Second, in respect of his appeal against the dismissal by O'Regan J of the 2014 proceedings she concluded that he had not established that she had erred in law or in fact when she dismissed his claim for negligence and/or breach of contract against Danske and in concluding that the receiver had been validly appointed. Further proceedings were commenced by plenary summons (Record No. 2016/6259P) (the 2016 proceedings) issued on the 12th July 2016. At that time the appellant's 2014 proceedings against the receiver and Danske were due to be heard in the High Court on the 14th July 2016. Following the dismissal of those proceedings by O'Regan J the 2016 proceedings were then served on the five named respondents. On the 12th October 2016, the High Court (Gilligan J) ordered that Mr Fox's action against all five defendants be struck out as frivolous, vexatious and an abuse of the process of the Court. He also dismissed the proceedings on the grounds that the proceedings were bound to fail. Mr Fox appealed to the Court of Appeal against that order. Mr Fox also appealed the order made by Gilligan J restraining him from instituting or commencing any new action concerning the subject matter of the proceedings or concerning his properties without leave of the court.

Held by Irvine J that the proceedings were correctly dismissed by the High Court judge as being bound to fail and also as being frivolous, vexatious and an abuse of process; they were proceedings which sought to engage Danske and the receiver for a second time on precisely the same issues earlier litigated and the claim as against the third, fourth and fifth respondents, Sherry Fitzgerald Auctioneers, Sherry Fitzgerald Lannon Auctioneers and Sherry O'Reilly Auctioneers, was bound to fail having regard to the validity of the receiver's appointment and the fact that as yet no properties have been sold. Irvine J held that it was in the interest of all parties that Mr Fox be restrained from instituting further proceedings in relation to his properties without further order of the court.

Irvine J held that she would dismiss in its entirety Mr Fox's appeal against all aspects of the order of the High Court.

Appeal dismissed.

Judgment of Ms. Justice Irvine delivered on the 20th day of June 2017

1 This is the appeal of the appellant, Mr. Fintan Fox, ('Mr. Fox'), against an order of the High Court (Gilligan J.) dated the 12th October 2016. By his said order the High Court judge ordered that Mr. Fox's action against all five defendants be struck out as frivolous, vexatious and an abuse of the process of the Court. He also dismissed the proceedings on the grounds that the proceedings were bound to fail. Mr. Fox also appeals the order made by Gilligan J. restraining him from instituting or commencing any new action concerning the subject matter of the within proceedings or concerning his properties without leave of the court.

Background

2 In summary summons proceedings (High Court Record No.2014/7584) ('the Danske proceedings') Danske Bank, ('Danske'), sought the recovery of approximately €1.52m. from Mr Fox on foot of various loan facilities. In April 2016 the High Court, Noonan J., granted judgment in favour of Danske against Mr. Fox for €1,472,996.95 together with costs.

3 Mr. Fox's liabilities to Danske were secured by two mortgages dated the 8th May 2007 and the 6th March 2012. These entitled Danske to appoint a receiver over the various properties to which the same related. The deeds of mortgage provided that the receiver would have the power to sell the mortgaged property in such manner and upon such terms as he considered appropriate.

4 Dankse appointed a receiver, Mr. McDonald, ('the receiver') by two deeds of appointment each dated the 27th May 2014.

5 In proceedings entitled Fintan Fox v. Declan McDonald and Dankse Bank A.S. trading as Danske Bank, (High Court Record No. 2014/7584) ('the 2014 proceedings') Mr. Fox commenced an action for damages for breach of contract, negligence, breach of duty and breach of statutory duty against Danske and the receiver. In those proceedings Mr. Fox inter alia alleged that Danske had mismanaged and misapplied his monies. He challenged Danske's right to appoint a receiver and maintained that the latter appointment was unlawful with the result that the receiver did not have the power to seek to sell his properties or to appoint estate agents to that end.

6 Material also to the present appeal is the fact that by notice of motion returnable for the 20th June 2016 Mr Fox sought liberty to join and DTZ Sherry Fitzgerald Auctioneers, the third named respondent herein, as defendant to the 2014 proceedings. That application was struck out by the consent of the parties by the order of O'Regan J. of the 15th July 2016. Further, by motion returnable before the court on the 4th July, 2016 Mr Fox also sought orders joining Sherry Fitzgerald Lannon Auctioneers and Sherry Fitzgerald O'Reilly Auctioneers, the 4th and 5th named respondents herein as defendants to the 2014 proceedings, a motion which he later withdrew. These three defendants/respondents had been engaged by the receiver to market and sell the properties over which he had been appointed receiver.

7 By order of the High Court (O'Regan J.) dated the 15th July 2016 made following a full hearing on oral evidence, Mr. Fox's claim against the receiver and Dankse was dismissed.

8 Mr. Fox appealed to this Court against the order for summary judgment granted by Noonan J. on the 4th April 2016 as he did the judgment and order of O'Regan J. dated the 15th July 2016 dismissing the 2014 proceedings against the receiver and Dankse Bank.

9 In my judgment delivered on the 26th May 2017 I upheld first the order for summary judgment and second the order of the High Court dismissing Mr. Fox's his claim against the receiver and Danske. In that judgment I expressed myself fully satisfied that Mr. Fox had not demonstrated any bona fide ground of appeal in respect of Dankse's claim for summary judgment in the sense of demonstrating any bona fide arguable ground of defence to those proceedings. Second, in respect of his appeal against the dismissal by O'Regan J. of the 2014 proceedings I concluded that he had not established that she had erred in law or in fact when she dismissed his claim for negligence and /or breach of contract against Danske and in concluding that the receiver had been validly appointed.

10 Mr. Fox's proceedings which are the subject matter of the within appeal were commenced by plenary summons (Record No. 2016/6259P) ('the 2016 proceedings') issued on the 12th July 2016. At that time his 2014 proceedings against the receiver and Dankse were due to be heard in the High Court on the 14th July 2016. Following the dismissal of those proceedings by O'Regan J. the 2016 proceedings were then served on the five named defendants.

11 The defendants/respondents were clearly of the view that the 2016 proceedings were in effect a duplication of the 2014 proceedings which had been dismissed by O'Regan J. and/or that they offended the rule in Henderson v. Henderson [1843] Hare 100. They each accordingly issued a motion seeking to have the 2016 proceedings dismissed under the Court's inherent jurisdiction and also under the provisions of Ord. 19, r. 28 of the Rules of the Superior Courts.

12 The last mentioned application was heard by Gilligan J. who, following a...